Atypical work and new forms of employment

Martin Risak Department of Labour Law and Law of Social Security

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Overview

Atypical employment• Deviations from the standard employment

contract• Strategies to cope with protection

defecits for workersThe next step: „new“ forms of

employment• What is so „new“ about them?• One example: crowdwork

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Standard („typical“) employment Full-time open-ended employment contracts

with some kind of security Issues and counter-strategies

• Wages: collective bargaining and statutory minimum wages

• Termination: general protection and special protection for certain groups

• Times of non-performance (esp. illness, annual leave): continuation of payment, social benefits

• Extensive working hours: working time laws• Unilateral decisions affecting employee-interests:

information/consultation/co-determination

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Atypical employment

Three main forms of atypical employment• Part-time work• Fixed-term employment• Temporary agency work (triangular

employment relationships) Other forms of atypical employment

• Seasonal work, telework, family work, self-employment

• Not that prevalent in the past -> some come up again as „new“ forms of employment

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Atypical employment: why?The employer perspective

Added flexibility avoiding the risks (and costs) associated with standard employment (and the legal benefits for workers that come with it)

Reducing the risk of paying for unproductive time

Avoiding the difficulties (and/or costs) connected with dismissal protection

Shifting risks to employees, temporary-work agencies or contractors

Avoiding costly collective bargaining agreements

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Atypical employment: why?The employee perspective

Added flexibility to combine (paid) work with other activities (e.g. childcare, household-duties, education, self-employment)

Job creation Job opportunities for persons excluded from

standard employment

But: lack of entitlements and benefits associated with standard employment

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Legal strategies on the EU-level

Part-time work (Directive 97/81/EC concerning the Framework Agreement on part-time work)

• Principle of non-discrimination, principle of pro-rata temporis

• Opportunities for part-time work (transfers from full-time to part-time and vice versa)

Fixed term contracts (Directive 1999/70/EC concerning the framework agreement on fixed-term work)

• Principle of non-discrimination• Measures to prevent abuse from successive fixed-term

employment contracts• Information and employment/training opportunities

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Legal strategies on the EU-Level

Temporary agency work (Directive 2008/104/EC)• Principle of equal treatment • Access to employment, collective facilities and

vocational training• Representation of temporary agency workers

Outsourcing (Directive 2001/23/EC – transfer of undertakings)

• Safeguarding of employees‘ rights (employment contracts, collective agreements, dismissal, representation)

• Information and consultation

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And now: New forms of employmentEurofound (2015)

Need for increased flexibility for both employers and workers

What is „new“?• Transformation of the traditional one-to-one

relationship between employer and employee: employee-sharing, job-sharing, interim management

• Unconventional work patterns: portfolio work, crowd employment, collaborative employment

• Unconventional places of work: information and communication technology (ICT)-based work

• Irregular provision of work: casual work (zero-hours contracts)

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New forms of employment

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„Remember outsourcing? Sending jobs to India and China is so 2003. The new pool of cheap labor: everyday people using their spare cycles to create content, solve problems, even do corporate R & D.“

„For the last decade or so, companies have been looking overseas, to India or China, for cheap labor. But now it doesn’t matter where the laborers are – they might be down the block, they might be in Indonesia – as long as they are connected to the network.“

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„The labor isn’t always free, but it costs a lot less than paying traditional employees. It’s not outsourcing; it’s crowdsourcing.“

(Jeff Howe, The Rise of Crowdsourcing, WIRED magazine 10.2006)

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Crowdsourcing: How does it work?

Plat-form

Crowd-sourcer

Crowd-

worker

• Internal – external crowdsourcing•Different types of „tasks“

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How does it work in practice?www.mturk.com

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Major issues for crowdworkers in practice

Low wages Job insecurity Social and professional isolation Unfair general terms & conditions (T&Cs)

• Right not to accept completed task without having to give a reason nor payment

• Reputation mechanisms No direct contact with crowdsourcers (esp. feed-

back for rejections)

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Two legal questions(and one follow-up question)

Who are the contractual partners?

What kind of contract exists between them?

Do minimum wages apply?

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Contractual Partners

Plat-form

Crowd-sourcer

Crowd-

worker

• Platform is only a broker and acts as an agent for the crowdsourcer• Platform is sole contracting partner of the crowdsourcer

→ crowdworkers are subcontractors of the platform

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Contractual Partners

Plat-form

Crowd-sourcer

Crowd-

worker

• Is there a direct contractual relationship?• When is the contract concluded? Right to reject completed tasks (T&Cs)?• What kind of contract?

• Employment contract or • contract for services?

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Contractual Partners

Plat-form

Crowd-sourcer

Crowd-worker

• Is there a direct contractual relationship? • What kind of contract?

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Employment Relationship?

Contra employment relationship• Workers choose when, where and what to work• Very short duration of the contract• Perception/agreement of the parties that no

employment contract is concluded Pro employment relationship

• Every task a fixed term contract• Tight virtual controls • Performance management via reputation system

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Thank you very much for your interest and attention!

Assoc.-Prof. Martin Risak, PhD

Department of Labour Law and Law of Social Security

University of ViennaSchenkenstrasse 8 – 10, 1010 Wien, AUSTRIA

martin.risak@univie.ac.athttp://www.univie.ac.at/arbeitsrecht